GCR Q1 2020

“Whether to apply the antitrust laws to labour, however, has never been a single, well-defined issue. The debate has, at one time or another, touched on almost every fundamental issue of labour policy…”

Ralph Winter wrote that in the Yale Law Journal in 1963, but competition law’s unease with labour continued long after he left academia to become a judge. At times, some antitrust experts have posited workers’ interest in opposition to consumer welfare. For example, Robert Bork in The Antitrust Paradox referred to labour union formation as “enhanc[ing] the gains of some workers at the expense of consumers”.

The potential conflict between protections for workers and lower prices, more innovation and more choice for consumers still pops up today. In February, Brazil’s competition authority opened a probe into and imposed interim measures on unions that it suspected of using a collective labour agreement to prevent low-cost gyms that offer affordable membership fees to customers from operating.

The struggle to organise is even more complex for “gig workers” such as Uber drivers, who are not categorised as employees and whose right to form unions is at best unclear. Our cover feature looks at how this form of labour can stay on the right side of competition law around the world.

Even as those workers try to cooperate, businesses are agreeing amongst themselves to limit employees’ ability to seek higher pay and better working conditions by changing employers. Franchisees’ no-poach agreements reduce competition for workers, but their legality in the US has yet to be fully tested.

Meanwhile, some enforcers have been using competition law for decades to try to protect jobs. Public interest considerations, particularly in merger review, have spread from South Africa to other jurisdictions, but antitrust experts have mixed reactions about how effective they are.

We hope you enjoy these articles, as well as surveys of the Chinese and Canadian competition bars, an interview with macroeconomist Jason Furman and more.

In this magazine

Workers of the world, collude!: Competition law offers an olive branch to gig workers

The big picture of competition: An interview with Jason Furman

China’s competition bar: Top China-based and international competition practices ranked

Reactions: Experts react to South Africa’s expanding public interest test

All in the franchise family: The debate on franchise no-poach agreements in the US